Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts relevant to the issue presented for determination are found: Customers who testified at the hearing and those who adopted the testimony of others had three major complaints as to the quality of water and sewer service received from the petitioner. These included the inconsistency of the quality of the water, billing procedures and practices, and plant and system management. The quality of the water which petitioner provides to its customers has not been consistent. While quality has greatly improved since November of 1980, the water does, on occasion, appear rusty, muddy or yellowish and does, on occasion, discolor laundry and ice cubes. No evidence was offered as to the frequency of such occasions. Some customers have received a bill for a vacant lot upon which there was no sewer connection or water meter. Another customer was billed at the wrong address after notifying the petitioner of a change in address. A customer who spent some eighteen months in Michigan continued to receive bills in full service amounts after he had requested that his water be disconnected. His correspondence on this problem was not responded to by Petitioner. Petitioner's main office is located in Orlando, approximately one hour away from Inverness. When major breakdowns in the water and sewer system occur, a crew can be dispatched from the Orlando area. Petitioner purchased the subject water and sewer operation in June of 1978. At that time the condition of the mechanical and electrical aspects of the operation was poor and the water was high in iron content, thus causing the water to have an almost constant rusty appearance. Petitioner installed a chemical called "aquamag" to hold the iron in suspension. Aquamag does not, however, remove the iron from the water, and petitioner is presently engaged in research concerning the possibility of a new water supply. It is possible that petitioner could have a new well in operation by June of 1981. Neither the water system nor the sewer system of petitioner are currently under any citations from local or state officials or agencies. Prior to November of 1980, petitioner employed three or four operators who were not able to provide the customers with the best quality of water possible. A new operator was employed in November of 1980 and service and the quality of water has greatly improved since that time. This operator is capable of handling routine operations. If major breakdowns occur, petitioner's mechanics and electricians in Orlando can be radio dispatched to the system for any type of repairs. Petitioner's Orlando office has had a toll-free 800 number for the convenience of customers for the past eight months to one year. The number is displayed at some of petitioner's plants, but is not presently printed on the bills which the customers receive. At the time of the hearing, the customer bills were being restructured to include the petitioner's toll-free number. Prior to the acquisition of the water and sewer system by the petitioner, the former owners had approval in their tariffs filed with the Public Service Commission to charge fees for vacant lots. Such charges were dropped in May of 1979, and the bills which the customers are presently receiving containing such a charge are actually past due bills from a time prior to May of 1979. During the 1979 test year, the annual average of customers served by petitioner was 166 for water service and 130 for sewer service. At the time of the hearing, petitioner estimates approximately 235 lots for water service and 159 or 160 active sewer service customers.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the quality of service provided by petitioner to its customers in Citrus County be found to be satisfactory and that no adverse consequences be imposed upon the petitioner as a result of the quality of its service. Respectfully submitted and entered this 16th day of April, 1981, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of April. COPIES FURNISHED: R.M.C. Rose Myers, Kaplan, Levinson, Kenin and Richards Suite 103, 1020 East Lafayette Street Tallahassee, Florida 32301 M. Robert Christ Legal Department Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 Jack Shreve Public Counsel Room 4, Holland Building Tallahassee, Florida 32301 Steve Tribble, Clerk Florida public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 Joe Cresse, Chairman Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: During the development stage of a condominium project, known as Lake Villas Condominium, in Altamonte Springs, Florida, First Federal Savings and Loan of Orlando foreclosed on some forty (40) units of the project. At that time, approximately in November of 1975, thirty-one (31) units already had fee- simple owners or were under a lease/purchase option and they were not involved in the foreclosure proceedings. Mr. David McComb, a vice-president and mortgage loan officer with First Federal Savings and Loan of Orlando, was given the responsibility of assuring the completion of the remaining units, selling the units and setting up a homeowners' association for the Lake Villas Condominium. The petitioner Lake Villas Condominium Association's five-position board of directors was originally comprised of three members who were personnel of First Federal Savings and Loan of Orlando, so that First Federal would have majority control at a time when it held the ownership to the majority of the units. In June of 1976, thirty-seven of the seventy-one units had been sold to individuals. Thereafter, the composition of the petitioner's board of directors changed and the individual-unit owners held the majority of the five positions. Mr. McComb, as a representative of First Federal Savings and Loan of Orlando, remained on the board of directors and continued First Federal's attempts to sell the remaining unsold units. First Federal retained a sales representative who lived in one of the condominium units, operated her sales office from one of the vacant units owned by First Federal and was paid a real estate commission when she sold a unit. The sales contract on the last of the units owned by First Federal was closed on December 12, 1977. Prior to mid-1976, the Florida Power Corporation account for seven or eight common element meters was in the name of First Federal Savings and Loan of Orlando, doing business as Lake Villas Condominium Association, and the billing statements were mailed to the Orlando office of First Federal Savings and Loan. In June or July of 1976, after the majority of units had been purchased by individual owners and majority control of the board of directors was obtained by the individual owners, Mr. McComb of First Federal placed a telephone call to the respondent's Winter Park office. The purpose of this call was to inform respondent that First Federal wanted the account name and address for the seven or eight meters changed and to inform respondent that the Lake Villas Condominium Association had taken over responsibility for the accounts. Mr. McComb spoke on the telephone to a female who handled commercial accounts for the respondent's Winter Park office and informed her that he wanted the name of First Federal Savings and Loan taken off the account and the bills to be mailed to the Lake Villas Condominium Association at a post office box in Altamonte Springs. The female to whom Mr. McComb spoke took down the information regarding the account numbers and change of billing names and addresses, and told him she would take care of it. Mr. McComb did not inquire about a rate adjustment, and no discussion was had concerning rates for the seven or eight meters. Following the June or July, 1976, discussion between Mr. McComb and a female at the respondent's Winter Park office concerning a change in billing name and address, the billing statements were sent and received at the post office address of the Lake Villas Condominium Association, Inc. in Altamonte Springs. Approximately one year later, in mid-1977, Mr. McComb was forwarded some delinquent notices on the seven or eight meters. They had originally been sent to the petitioner's post office box in Altamonte Springs, but were thereafter forwarded to Mr. McComb's attention at First Federal. Mr. McComb noticed that, although the post office address had been changed, the accounts were still in the name of First Federal Savings and Loan of Orlando. He then placed another telephone call to the respondent's Winter Park office, spoke with a female in the commercial department and requested that the name of First Federal Savings and Loan of Orlando be removed from the account and that the Lake Villas Condominium Association, Inc. be inserted as the new-named customer. The female informed Mr. McComb that this request would be taken care of and that nothing further need be done. No inquiry by Mr. McComb or discussion was had concerning a rate adjustment for these seven or eight meters. Electricity for the individual living units of the Lake Villas Condominiums are separately metered. In addition, there are seven or eight separately billed meters which service the common areas of the condominium, such as the two swimming pools, the internal street and sidewalk lighting, the clubhouse and small post lamps for an open green area. From at least April of 1979 through October of 1980, no commercial activity occurred in any of the condominium units. In April of 1979, Mr. O. K. Armstrong became the manager of the Lake Villas Condominiums and was responsible for the association's financial transactions. He noticed in May of 1979 that the bills for the seven or eight subject meters contained the name of First Federal Savings and Loan of Orlando, though they did list the condominium's post office box number for the address. After speaking with Mr. McComb about the matter, Mr. Armstrong telephoned a Mr. Harbour at the respondent's Winter Park office. It was during this discussion that petitioner, through Mr. Armstrong, learned that the seven or eight common element meters might qualify for a residential, as opposed to the higher commercial, rate. Thereafter, the rates for the seven or eight meters were changed by Florida Power Corporation from commercial to residential. The request of Mr. Armstrong for a retroactive application of those residential rates to January 1, 1976, which would amount to a refund of all amounts paid in excess of the residential rates from that date, was denied by Mr. Harbour, respondent's office manager in Winter Park. During the hearing, the petitioner verbally amended the request for retroactive application of the residential rate from January 1, 1976, to July of 1976.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the petition filed by the Lake Villas Condominium Association, Inc. be DISMISSED. Respectfully submitted and entered this 17th day of June, 1981, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1981. COPIES FURNISHED: James D. Mapp Hunter, Pattillo, Marchman, Mapp and Davis Post Office Box 340 Winter Park, Florida 32790 Blair W. Clack Assistant Counsel Post Office Box 14042 St. Petersburg, Florida 33733 Arthur Shell Public Service Commission Legal Department 101 East Gaines Street Tallahassee, Florida 32301 Steve Tribble, Clerk Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301
The Issue The issues for determination in this case are whether certain provisions of the 1993 Florida Utility Accommodation Manual which have been adopted by Respondent, the FLORIDA DEPARTMENT OF TRANSPORTATION, as rules by reference in Rule 14-46.001(3), Florida Administrative Code, constitute invalid exercises of delegated legislative authority. The specific provisions of the 1993 Florida Utility Accommodation Manual which are at issue include the definitions of "utility" and "utility facilities" (page 4), the "no monetary gain" provision (page 7), and the "joint use" provision (page 12). In addition, Petitioners raised an issue as to whether Respondent, FLORIDA DEPARTMENT OF TRANSPORTATION violated Section 120.535, Florida Statutes, by failing to adopt by rule certain agency requests for information from Petitioner regarding costs associated with the installation and maintenance of utility poles.
Findings Of Fact Petitioner, WITHLACOOCHEE RIVER ELECTRIC COOPERATIVE (WITHLACOOCHEE), is a cooperatively-owned utility operating in the State of Florida. Respondent, FLORIDA DEPARTMENT OF TRANSPORTATION (FDOT), is the agency of the State of Florida vested with jurisdiction over the regulation of the use of state rights-of-way along, across, or on any public roads or publicly owned rail corridors. WITHLACOOCHEE owns utility poles which are located in state rights-of- way FDOT has promulgated rules for the regulation of the usage of the state rights-of-way by utilities, including cooperatively-owned utilities such as WITHLACOOCHEE. WITHLACOOCHEE holds valid permits issued by FDOT which authorize and regulate the placement of its utility poles on state rights-of way. FDOT does not receive from WITHLACOOCHEE any fees or other compensation for the placement of its utility poles on state rights-of-way. Intervenor, TIME WARNER ENTERTAINMENT COMPANY, L.P. (TIME WARNER), is in the business of providing cable television service throughout the State of Florida, and has placed and maintains cable television lines within the state rights-of way. Cable television lines are structures similar to telephone, telegraph and other lines transmitting communications. Intervenor, TIME WARNER, (including its predecessors), and WITHLACOOCHEE have been joint users of the state rights-of-way in Pasco, Hernando, and Citrus Counties since before 1982. Intervenor, TIME WARNER, including its predecessors, and WITHLACOOCHEE have entered into pole sharing agreements regarding the placement and maintenance of TIME WARNER's cable television lines on WITHLACOOCHEE's utility poles. On or about November of 1994, the pole sharing agreements between TIME WARNER and WITHLACOOCHEE terminated. Prior to the termination of the pole sharing agreements, on April 13, 1994, TIME WARNER filed a petition with FDOT requesting that FDOT address and resolve the dispute with WITHLACOOCHEE. The TIME WARNER petition was the first such petition ever filed with FDOT. By order dated June 14, 1995, FDOT denied WITHLACOOCHEE's Motion to Dismiss the TIME WARNER petition. In an effort to collect information regarding the petition, FDOT by letter dated July 6, 1994, and subsequently by Show Cause Order entered June 14, 1995, requested pole cost information from WITHLACOOCHEE. On June 30, 1995, WITHLACOOCHEE responded to the Show Cause Order, contesting the authority of FDOT to request such information. FDOT has not promulgated rules with respect to the request of costs associated with installation and maintenance of utility poles or other such information from a utility. STANDING OF INTERVENOR FLORIDA POWER CORPORATION On September 22, 1995, FLORIDA POWER CORPORATION (FLORIDA POWER), filed a Petition for Leave to Intervene in these proceedings alleging that it is a utility in the State of Florida, that it owns poles in the state rights-of- way, that it has entered into pole sharing agreements with cable television companies which set rates that the cable television companies will pay to FLORIDA POWER to attach their cables to FLORIDA POWER's poles. These allegations were not disputed. Respondent FDOT and Intervenor TIME WARNER contend that FLORIDA POWER lacks standing because under 47 U.S.C. s. 224, the Federal Communications Commission, and not FDOT, has authority to regulate the rates, terms, and conditions for attachments by cable television systems, and therefore the substantial interests of FLORIDA POWER are not affected in this proceeding. FLORIDA POWER's substantial interests are affected by a determination of FDOT's definition of "utility" and "utility facilities", and by a determination of the extent to which FDOT has jurisdiction over the regulation of the use of the state rights-of-way by utilities. FLORIDA POWER has a substantial interest in the determination of the application of federal and state statutes in this regard, and should not be foreclosed from presenting its position in these proceedings. CHALLENGE TO ADOPTED RULES WITHLACOOCHEE challenges three provisions contained in the 1993 Florida Utility Accommodation Manual (Manual). FDOT has adopted the Manual as a rule by reference in Rule 14-46.001(3), Florida Administrative Code. Specifically, WITHLACOOCHEE challenges the Manual's definition of "utility" and "utility facilities", (page 4), the "no monetary gain" provision, (page 7), and the "joint use" provision, (page 12). The Manual provides guidelines for the issuance of utility permits on public roads maintained by FDOT. A version of the Manual has been in existence since at least 1964. The 1993 edition of the Manual contains, on page 5, a statement of intent which provides in pertinent part: This Manual is established to regulate the location, manner, installation and adjustment of utility facilities along, across, under or on any right-of-way under the jurisdiction of the FDOT. This Manual also is used for issuing permits for such work which is in the interest of safety, protection, utilization and future development of the highways with due consideration given to public serves afforded by adequate and economical utility installations as authorized under Section 337.403, Florida Statutes and Florida Administrative Code Rule 14-46.001. Adherence shall be required under the circumstances set forth in this Manual. Where actual field conditions vary from those outlined in this Manual, disputes may arise as to what accommodation criteria is appropriate under the actual conditions. Such disputes which cannot be resolved at the local or District level by mutual agreement shall be referred to the State Utility Administrator or designee for final resolution. While this Manual governs matters concerning future location, manner and methods for the installa- tion or adjustments and maintenance of utilities on FDOT right-of-way, it does not alter current regulations pertaining to authority for their installation nor does it determine financial responsibilities for placement or adjustment thereof. The Manual is prepared with the consultation and cooperation of the Florida Utilities Coordinating Committee (Committee). The Committee is a voluntary private organization comprised of representatives from various utilities, including cooperatively owned utilities, that coordinates and communicates with FDOT on issues impacting both the utility industries and FDOT. The Committee meets with representatives of FDOT on a regular basis to develop policy recommendations on such issues. The Committee worked with representatives of FDOT in developing the 1993 edition of the Manual. Members of the Committee had knowledge of the provisions of the 1993 edition of the Manual prior to adoption of the Manual as a rule by FDOT. Definition of "Utility" and "Utility Facilities" In 1993 the Manual was amended to include "television transmission signals" within the definitions of "utility" and "utility facilities" on page 4 of the Manual. Specifically, the Manual provides: Utility - All privately, publicly or cooperatively owned lines, facilities and systems for producing, transmitting or distributing communications, power, electric- ity, light, heat, gas, oil, crude products, water, steam, waste and storm water not connected with highway drainage, and other similar commodities, including television transmission signals, publicly owned fire and police signal systems and street lighting systems, which directly or indirectly serve the public or any part thereof. The term "Utility" shall also mean the UAO, inclusive of wholly owned or controlled subsidiary. Utility Facilities - All privately, or publicly or cooperatively owned lines, facilities and systems for producing, trans- mitting or distributing communications, power, electricity, light, heat, gas, oil, crude products, water, steam, waste, storm water not connected with highway drainage and other similar commodities, including television transmission signals, fire and police signal system and street lighting systems, which directly or indirectly serve the Public or any part thereof. The 1993 amendment to the Manual to include television transmission signals within the definitions of "utility" and "utility facilities" was adopted at the request of the Committee. Television transmission signals are transmitted by structures similar to other utilities and utility facilities as defined in the Manual. Joint Use Provisions The accommodations standards set forth in the Manual, (page 12), provide for the basic requirements governing location of utility installations on state rights-of way. These requirements include a general requirement that for installation of overhead utilities, one side of the right-of-way is reserved for communication lines, and one side for power lines. The basis for this requirement is that the greater number of structures placed in the right-of-way increases the risk of accidents to the traveling public. It is in the interest of safety for the traveling public for FDOT to minimize the number of structures placed in the state rights-of way. In Florida, between 1990 and 1993, vehicle collisions with utility poles resulted in 297 deaths. Under conditions found in Florida, the density of poles or other structures in the right-of-way is the factor most closely identified with the number of such vehicle accidents. Since at least 1964, FDOT has required that in cases where more than one utility agency or owner (UAO) proposes an aerial installation on the same side of a highway, a joint use arrangement must be agreed to by the UAOs. This provision is also contained in the 1993 Manual, and specifically provides: For the installation of overhead utilities, one side of the right-of-way is usually reserved for communication lines and the other side is reserved for power lines. In situations where underground and overhead utilities occupy the same side of the roadway, the overhead facility should be placed on the outside of the underground facility to provide the maximum clear roadside recovery area possible. In cases where more than one UAO proposes an aerial installation on the same side of the highway, a joint-use arrangement must be agreed to by the UAOS. Only single pole lines shall be permitted on each side of FDOT's right-of-way. Any exception must be amply justified and approved by the State Utility Administrator or designee. In cases where the UAOS cannot agree, the dispute shall be referred to the State Utility Administrator or designee whose determination shall be final. This does not prohibit a single UAO from occupying both sides of the right-of-way when there are no objections from other UAOS if proper justification is provided to the FDOT, and there is only one pole line on each side of the right-of-way. As indicated above, in cases where the UAOs cannot agree, the Manual provides that the State Utility Administrator or his designee shall resolve the dispute. Until this dispute arose between WITHLACOOCHEE and TIME WARNER, FDOT had not been petitioned to resolve a joint use dispute between a power company and cable television company. No Monetary Gain Provision Contained in the provisions of the Manual setting forth the requirements for making application to use the state right-of-way, there is a prohibition against use of the state right-of-way for profit. Specifically, the Manual on page 5 provides: No individual, firm, company or governmental agency may be permitted to use the FDOT right-of-way for monetary gain except where provided for by the Public Service Commission, Federal Energy Regulatory Commission, or Federal Communications Commission. This provision was adopted in response to complaints received by FDOT that utilities were making a profit from use of the state rights-of-way. Specifically, FDOT had been informed that a company was constructing surplus conduits in the state rights-of-way for the purpose of leasing the use of the conduit to other utilities. Conduit, like poles, is used for communications distribution systems. The provision was drafted by Richard Larry Noles, an FDOT employee. The provision was provided to the Committee prior to adoption, and was accepted by the Committee with the addition of the provision to allow for monetary gain where provided for by the Public Service Commission, Federal Energy Regulatory Commission, or Federal Communications Commission. Cooperatively-owned utilities, including WITHLACOOCHEE, are not exempted from the no monetary gain provision. The intent of the no monetary gain provision is to provide equal access to all users of the state rights-of-way, and to prevent subsidization of one utility at the expense of the customers of another utility. It is not the purpose of the no monetary gain provision to determine the rates charged to customers of a utility.
Findings Of Fact Application No. 76-00408 is for an existing water use from six wells. The application seeks a total average annual withdrawal of 3.298 million gallons per day and a maximum daily withdrawal of 9.801 million gallons per day. The wells will be located in the Peace River basin in Polk County. Ninety-nine percent of the water will be used for industrial purposes and one percent of the water will be used for irrigation purposes. The applied for consumptive use will not violate any of the conditions set forth in Subsection 16J-2.11(2), (3) or (4), Florida Administrative Code. The Southwest Florida Water Management District's staff recommends granting of the subject permit in the amounts requested with the following conditions: That the applicant shall install totalizing flowmeters of the propeller-driven type on all withdrawal points with the exception of the well to be used for agriculture located at , Latitude 27 degrees 45 minutes 39 seconds, Longitude 81 degrees 37 minutes 07 seconds and the fire well located at Latitude 270 54 minutes 39 seconds, Longitude 81 degrees 36 minutes 00 seconds. The applicant shall submit to the district a record of pumpage for each meter installed in (a) above on a quarterly basis beginning January 15, 1977, with the pumpage recorded on a weekly basis.
Recommendation It is hereby RECOMMENDED that a consumptive use permit in accordance with Application No. 76-00408 be issued with the conditions set forth in paragraph 3 above. ENTERED this 13th day of October, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Citrus World, Inc. Staff Attorney Post Office Box 1111 Southwest Florida Water Lake Wales, Florida 33853 Management District Post Office Box 457 Brooksville, Florida 33512
Findings Of Fact Petitioner and DER have stipulated to the following facts: Petitioner is the owner and developer of real property in Franklin County, Florida. 2. DER has adopted Rules 17-4.28(2), 17-4.28(8)(a) and 17-4.242(1)(a)2, Florida Administrative Code, which: require a permit for dredge and fill activities under Chapter 403, Florida Statutes; prohibit permitting of dredge and fill activities in Class II waters approved for shellfish harvesting by the Department of Health and Rehabilitative Services (now the Department of Natural Resources); and require an affirmative public interest showing of an applicant for a license to construct a stationary installation in "Outstanding Florida Waters." These rules substantially affect Petitioner for the following reasons: Petitioner applied to DER for a development permit to dredge a navigation channel from his private canal into Alligator Harbor in Franklin County. The navigation channel was proposed to be 40 feet wide and 400 feet long, and was to be dredged to a depth of minus four (-4) feet mean low water, which would entail removing approximately 3,890 cubic yards of material. On May 28, 1980, DER issued an intent to deny the requested permit in file No. 19- 28442-1E. On June 11, 1980, Petitioner filed a petition for administrative hearing on DER's intent to deny his permit application. On June 12, 1980, DER informed Petitioner it would take no action on its Intent to Deny letter of May 28, 1980, for 60 days and allow Petitioner to submit additional information on the merits of his permit application during that period. DER took no further action regarding the Intent to Deny or Petitioner's permit application, and, after Petitioner's request, on March 5, 1981, DER forwarded the petition for administrative hearing filed with it on June 11, 1980, to the Division of Administrative Hearings. DER's Intent to Deny Petitioner's permit application stated DER had permitting jurisdiction under Chapter 403, Florida Statutes, and under Rule 17-4.28(2), Florida Administrative Code, because the proposed dredging would be in waters of the state within the definition contained in Rule 17-4.28(2), Florida Administrative Code. DER's Intent to Deny Petitioner's application asserted that Petitioner's proposed project was located in Class II waters approved for shellfish harvesting and that dredging in such areas was prohibited by Rule 17- 4.28(8)(a), Florida Administrative Code. DER's Intent to Deny Petitioner's application stated that Petitioner had not "affirmatively demonstrated that the proposed activity or discharge is clearly in the public interest pursuant to Section 17-4.242(2). . . . The parties have agreed that the reference in the aforementioned quote should have been to Section 17-4.242(1)(a)2. Counsel for each of the parties have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact are not contained in this order, they have been specifically rejected as being either irrelevant to the issues involved in this proceeding, or as not having been supported by evidence of record.
The Issue Whether Florida Administrative Code Rule 2B-1.002 is an "invalid exercise of delegated legislative authority," as alleged by Petitioner.
Findings Of Fact Petitioner is a corporation which has as its purpose the preservation of air quality in Pinellas County and in the State of Florida. Petitioner has approximately twenty members. The Department of Environmental Regulation has published notice that it is proposing to repeal its Rule 17-2.05(8), Florida Administrative Code. This rule is known as the "Complex Source Rule". It requires that permits be obtained from the Department before a facility which can reasonably be expected to cause an increase in concentrations of air pollutants is constructed. Petitioner is a party in a proceeding in which another party has submitted an application for a complex source permit. Administrative appeals of final agency action adverse to the Petitioner are being pursued. If the "Complex Source Rule" is repealed, the proceeding would be subject to dismissal. The primary focus of the "Complex Source Rule" is to regulate concentrations of pollutants that are generated by automobiles that would use a facility for which a permit is sought. There are other methods for controlling this sort of pollution. These include the Federal Motor Vehicle Control Program, which is designed to decrease the pollutants in automobile emissions; non-attainment plans designed to bring an area where pollutants exist at levels in excess of Respondent's rules into compliance; various federal monitoring programs; and mechanical alteration of motor vehicles, including installation of catalytic converters and greater fuel efficiency. Arguably, the "Complex Source Rule" would augment the desirable impacts of these other means of dealing with automobile related pollution. Petitioner has failed to establish, however, that these other methods and programs are not adequate to deal with the problems.
